Maynard v. Chicago, B. & Q. R. Co.

• Decision Date: 01 May 1911
• Citation: 137 S.W. 58,155 Mo. App. 352
• Court: Missouri Court of Appeals
• Parties: MAYNARD v. CHICAGO, B. & Q. R. CO.

137 S.W. 58

155 Mo. App. 352

MAYNARD v. CHICAGO, B. & Q. R. CO.

Kansas City Court of Appeals. Missouri.

May 1, 1911.

1. TRIAL (§ 251)—INSTRUCTIONS—ISSUES.

Where the negligence alleged in an action against a railroad company for injuries by frightening a team engaged in grading the track and causing them to run into plaintiff was in permitting the engine to unnecessarily emit steam so as to cause a loud and unusual noise, it was error to submit the issue of negligence in failing to discontinue the noise by the steam, after the engineer saw, or by exercising reasonable care could have discovered, that it was frightening the horses.

2. NEGLIGENCE (§ 119)—ACTIONS—PROOF.

Plaintiff cannot rely upon negligent acts not alleged in his petition.

3. MASTER AND SERVANT (§ 264)—INJURIES— ACTIONS—ALLEGATIONS OF PETITION.

The petition alleged that plaintiff and his team were employed by defendant railroad company in grading, and that defendant's engineer while passing the point where plaintiff and others were working negligently failed to give warning of the train's approach, and negligently managed the engine by discharging steam so as to make a loud and unusual noise, by which several teams were frightened and ran away injuring plaintiff. Held, that the elements of the cause of action alleged were that the emission of the steam was unnecessary and unusually loud, and that the noise caused by it was the proximate cause of the runaway and injury, so that plaintiff was not entitled to recover if he did not prove that the steam was unnecessary, and the resulting noise unusually loud.

4. MASTER AND SERVANT (§§ 137, 210*)—MASTER'S LIABILITY—NEGLIGENCE.

The mutual duties of one employed with a team in grading a railroad right of way and of the company are analogous to those between it and its sectionmen, so that, while such an employé assumed the risk of injury from passing trains operated in the usual manner, it was the duty of engineers to maintain a reasonable lookout for the grading employés, and not to negligently injure them, but the company would not be liable for injuries caused by frightening a team by the usual and necessary emission of steam, except where the engineer sees that the track or grade laborers were endangered thereby.

Appeal from Circuit Court, Buchanan County; Lucian J. Eastin, Judge.

Action by Daniel W. Maynard against the Chicago, Burlington & Quincy Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

Culver, Phillip & Spencer, for appellant. J. N. Walker and W. H. Haynes, for respondent.

JOHNSON, J.

This is an action for personal injuries plaintiff alleges were caused by the negligence of defendant in the operation of one of its trains. The answer contains a general denial and a plea of assumed risk. The cause is here on the appeal of defendant from a judgment of $800 recovered by plaintiff in the circuit court. The injury occurred October 24, 1907, on defendant's right of way, at a point about two miles west of Easton and eleven miles east of St. Joseph. Defendant was widening its railroad, and plaintiff and his team, together with other men and teams, were working with scrapers enlarging the embankment. The railroad was being operated and many trains passed daily. For east-bound trains the track was on an upgrade and reverse curves added to the work of locomotives pulling heavily loaded freight trains. A meat train of 25 or 30 cars came from the west at about 2 o'clock in the afternoon, and, when its locomotive was nearly opposite one of the scraper teams (not plaintiff's), a team which...